In another pro-union development, the National Labor Relations Board (NLRB) recently held that under certain conditions, an employer has a duty to bargain with a union before unilaterally imposing discretionary discipline on employees.

In Alan Ritchey, Inc. and Warehouse Union Local 6, International Longshore and Warehouse Union, AFL-CIO, the employer used a progressive disciplinary system but made discretionary discipline decisions against a group of employees. In response to that action, the union alleged that the employer violated the National Labor Relations Act by failing to provide notice and an opportunity to bargain.

In its Dec. 14, 2012, decision, which only applies prospectively, the NLRB held that discretionary discipline is a mandatory subject of bargaining and that employers may not impose certain types of discipline unilaterally. Prior to exercising its discretion to impose discipline, an employer must provide the union with notice and the opportunity to bargain with it in good faith.

The NLRB, however, emphasized there are limits to its holding:

The employer’s duty to bargain before imposing discipline arises only with regard to discretionary disciplinary action that has an inevitable and immediate impact on employees’ tenure, status or earnings. Such disciplinary action generally would include suspension, demotion or discharge, but exclude less serious disciplinary action, such as oral and written warnings.

The rule applies only during the period after the union has become the employees’ bargaining representative but before the parties have agreed upon a contract and only if the parties have not agreed upon an interim grievance procedure.

The NLRB explained that the employer is only required to provide the union with notice and an opportunity to bargain before issuing discipline. The employer is not required to bargain to agreement or impasse at this stage, but must continue to bargain with the union after imposing discipline.

An employer may impose discipline without providing notice and an opportunity to bargain in exigent circumstances, i.e., where it has a reasonable, good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel. Such exigent circumstances may include situations where the employer believes an employee has engaged in unlawful conduct, poses a significant risk of exposing the employer to liability for his conduct, or threatens the safety, health or security in or outside the workplace.

How employers can respond

Although the full impact of Alan Ritchey remains to be seen, employers should expect to encounter increased union challenges to their disciplinary actions. In light of this recent NLRB precedent, unionized employers can minimize their risk of an unfair labor practice charge by establishing policies and procedures to ensure that unions are notified of their rights to bargain on covered disciplinary action and also train management and human resources on the employer’s obligations. Above all, employers should continue to stay abreast of the ongoing pro-union developments from the NLRB that are sure to impact the workplace.